April 23, 2015

On Friday the Justices will consider whether to hear O’Keefe v. Chisholm, a Section 1983 civil-rights lawsuit brought by Wisconsin Club for Growth director Eric O’Keefe against Milwaukee District Attorney John Chisholm and other prosecutors. The suit charges the prosecutors with a multi-year campaign to silence and intimidate conservative groups whose political speech they don’t like....

There is an exception to the Younger doctrine, which the plaintiffs tried to use here, that applies when the federal rights claimants show that the prosecutors in state court are proceeding in "bad faith." The question is whether the prosecutors are really attempting to secure a valid conviction or whether they are simply using the legal process to harass the federal court plaintiffs. The 7th Circuit panel found some perplexity in the free speech issues about campaign coordination:

The Supreme Court has yet to determine what “coordination” means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person’s election? What if the speech implies, rather than expresses, a preference for a particular candidate’s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician’s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions.

This is a nudge to the state judge to shut down the investigation, and yet there is something very disturbing about this ambiguity in free speech law and the leeway it gives prosecutors to stall a political group throughout a campaign season. I'd like to see the Supreme Court make this clear....

Back to the WSJ editorial:

Specific injustices aside, the U.S. Justices should also hear the case because it is part of a larger legal effort to subvert their 2010 Citizens United ruling. The game is to use the theory of “coordination,” which allows vast investigations to be instigated on the thinnest evidence, to sweep issue speech back into the regulatory umbrella of campaign-finance law.

The liberal Brennan Center for Justice is pushing regulations coast to coast that would reduce protections for issue speakers and encourage “coordination” probes. The Wisconsin case is an opening for the Court to tell prosecutors and regulators they must tread carefully when rights of free association are involved.

Wisconsin’s prosecutorial machinery has abused the law to silence disfavored political speech. This one is made to order for Supreme Court review.

I agree. The Court needs to take this case. Quite aside from all the substantive problems, the idea of deferring to the state courts is supposed to be based on the ability of the state courts to step up and deal with the substantive problems themselves. The 7th Circuit decision came out 7 months ago. Where's the action from the state courts? If there are indeed free-speech violations, they've been going on for 3 years. It's one thing for federal courts to refrain from jumping into state court proceedings that might do a decent-enough job of enforcing federal rights. But here, these proceedings have worked to suppress political speech for 2 election cycles and beyond. It's quite shocking.

What is really ironic about this whole John Doe case is that it is apparently about doing a little politics on the people's time, when the Prosecutor has spent millions of dollars and countless hours of time and energy in a partisan project of personal and political destruction.

The Wisconsin "left" are beyond the pale. One hopes the SCOTUS will end up with the case sooner rather than later. In the meantime, I hope the good people of Wisconsin take their state back from the grip of these perpetual dwellers of the political version; 50 Shades of Grey.

Where's the action from the state courts? If there are indeed free-speech violations, they've been going on for 3 years. It's one thing for federal courts to refrain from jumping into state court proceedings that might do a decent-enough job of enforcing federal rights. But here, these proceedings have worked to suppress political speech for 2 election cycles and beyond. It's quite shocking.

If only there were someone in the State of Wisconsin itself, trained in Constitutional law, with a secure position at the State's flagship university, who could try to make a difference rather than letting this shocking process drag on.

It's one thing for federal courts to refrain from jumping into state court proceedings that might do a decent-enough job of enforcing federal rights. But here, these proceedings have worked to suppress political speech for 2 election cycles and beyond. It's quite shocking.

Moreover, wasn't it noted by the reporters tipped-off about at least one home invasion that the FBI was involved in the raid?

Are you saying that whenever there's any lack of certainty about whether a person has broken ANY laws, that there are not free speech rights?

That would be fascist already. But you also fail to account for the fact that Wisconsin laws, as interpreted by the investigators, might violate federal constitutional rights. That's the substantive question that needs to be reached. Why don't you care about constitutional rights?

But you also fail to account for the fact that Wisconsin laws, as interpreted by the investigators, might violate federal constitutional rights.

So says the people being investigated and their partisan backers. But if that were true, don't we need to pardon dozens of people convicted under the same laws? Like Chuck Chvala, Mark Block, and others.

What a gig though huh? Now the conservative majority has to decide if the people that put them in power are guilty of any crimes. They have canceled oral arguments. They kicked the Chief Justice out. I WONDER WHICH WAY THEY MIGHT RULE.

The left likes to say that Schmitz is a republican, so this Doe vendetta cannot be a partisan exercise.

Where is the evidence this is true? The most I have seen is that Schmitz SAID he voter for Walker. One time, in some election. That may or may not be true. If true, it may have been in a primary, or for a host of reasons other than he generally supports republicans.

I am not certain that garage is innocent of all wrongdoing. I say that he be investigated vigorously, denied any right to a lawyer, and if we don't find something right away, we come up with "theories" of how his activities could be considered criminal, and go over him again.

At a minimum, if he has a job, he is probably guilty of "theft of time" for commenting here during working hours. We can work with that. Depending on what he is paid an hour, maybe we can work it up to grand theft, a felony, and we can frog-march him down to the jail-house!

Regarding Garage - in that super-long thread from yesterday, those points were made to him. His hatred and anger at the Wisconsin GOP in general and Walker in particular has completely blinded him to the point where you'd get a better response talking to a piece of granite.

Sad, but he's actually representative of a big chunk of the people on the left. Look at ARM's meltdown yesterday as well...

I'm not sure if you've broken any laws either. Perhaps a swat team could show up at your house in the early morning hours, and threaten to break your door down if you didn't open it. Then, confiscate your computer and other files. Hopefully, they won't shoot your dog, or kids.

Having recently returned to Wisconsin after 40 years in the flat-lands of Illinois, I am completely disturbed at the seedy underbelly of court / prosecutorial corruption.

The worst part is, there are many out there just like Garage and ARM who are perfectly fine with this type of stuff happening to their neighbors if they are not lock step in the Madison / Milwaukee political control system.

For a State where people really are quite nice, this has that creepy feel like Shirley Jackson's "The Lottery".

Righties just can't accept that fact. Will not. Can not. righties are the most persecuted group of people on the planet. Just ask them!

Would you please stop setting up strawmen? This has nothing to do with whether a republican is heading the investigation. It was a left wing prosecutor (Chisholm) and a left wing judge (Klauka) who set this whole thing in motion.

All that aside - if this were happening to someone on the left (the Chvala example doesn't apply), I'd be just as loud about it as I am this mess. YOU'RE the one who can't get over the left/right thing.

"There's something fishy about him.I can feel it in my gut.Dreyman's having a party next week.Some dubious types are going, Hauser and that rabble.Try to wire the place discreetly by then.Measures A and B.Only in his rooms. Nothing conspicuous.He has powerful friends.No one is to know about thisuntil we've found something.But if you get something on him,you'll have a good friend in the Central Committee.You understand what I'm saying?Have a nice evening, Comrade Minister."

Milwaukee Prosecutor John Chisholm was the featured speaker at an Ann Walsh Bradley for Wisconsin Supreme Court fund raiser this past March.

Typical Left-Wing hypocrisy that these two can 'coordinate' their political speech, while both agreeing with the John Doe tactic of suppressing others'.

Like the Clinton corruption they just hide this stuff in plain site. They know full well that the 47% of Wisconsinites on Garage and ARM's side of the fence don't give shit. It's like half the State is having convulsions and going through a prolonged withdrawal after fifty plus years of Madison control.

I'm curious if the liberal (if you'll excuse the expression) use of the term "leftist" here is just used as a synonym for "democrat," reflecting a belief by the commenters that all Democrats are leftists--a ludicrous notion, as few of them are--or if those branded as leftists are objectively known to be or are self-identified as actual, true, real-life "leftists."

Leftists rare critters in mainstream American politics, so rare they're rumored to be extinct.

Remind me again which country locks up more its people than any other. And, which country has a massive surveillance apparatus directed at its own people. And, who voted for these things.

I don't know why you keep bringing this up. Are you saying that because other people are locked up for things that you don't think they should be, the rest of us can't be pissed off that this is happening?

"the term "leftist" here is just used as a synonym for "democrat," reflecting a belief by the commenters that all Democrats are leftists"

No, it's to distinguish them from liberals. The difference is liberals support traditional mechanisms of freedom like free speech and religion, and understand most policy positions include trade offs reasonable people disagree on.

Because you are in a very weak position to complain about abuses of state power if you did vote for these things.

First of all, you don't know me from Adam, so you have no idea if I "voted for these things". Second, the above statement is just a reiteration of the question I asked you, so I'll take the answer to be yes, because other people are locked up for things that you don't think they should be, the rest of us can't be pissed off that this is happening.

You can be for some state power. There are people who honestly believe that drugs are killing our society, and that people who use or distribute them should be punished. The laws even reflect that. Voted in democratically.

Now this situation - people have guns pointed at them for absolutely NO CRIME AT ALL, are being put on a gag order and being told that they can't contact a lawyer. Please point to me one single drug dealer in prison (remember, these people actually committed crimes) who had those shackles put on them at ANY TIME during their indictment, trial, and subsequent incarceration.

You compare the two situations like they're the same. They're watermelons and grapes. Not even in the same ballpark. So as usual, your argument falls flat.

@Robert Cook - I use the term "leftist" without regard to whether the person is a "Democrat." Leftists self-identify quite often by their strong opposition to the concept of free speech. Not that some rightists don't share that opposition, but they are generally not as rabid, and don't control institutions (such as universities) where speech suppression is joyfully celebrated.

Leftists are a rare breed today? Only if you have no sense of the nation's traditional left/right divide. Read JFK's address to the American Newspaper Publishers Association in April '61, or his speech before the Economic Club of New York in December '62, and tell me honestly whether such a man has any place in today's Democrat party. I daresay he'd be drummed out as a one-percenter and a warmonger quicker than you could blink.

Given that the Democrat party has moved so far leftward just since JFK's time, can you really believe that leftists are so rare? It seems to me far likelier that people don't recognize leftist policy for what it is, because it has so successfully insinuated itself into the mainstream.

"AReasonableMan said...State power is out of control but the reality is that a large slice of the electorate is just fine with that. None of them are liberals or even moderates."

How absurd can any one person be? The left supports vastly more state authority in all but a handful of circumstances.

Interestingly the easiest way to identify their desires is to ask yourself what role government should have any particular area. The more obvious the need for a government role the less authority the left desires it to have. The more tenuous the connection the more absolute the authority desired by the left.

So while the left wants a weaker government regarding military and traditional law enforcement they concurrently want to grant the EPA virtually unlimited regulatory authority over business and want to create similar bureaucratic oversight to micromanage relations with every left leaning identity group.

Anyone know if there is a fund to which we can donate that is explicitly set up to engage in personal lawfare against these petty fascists? I don't want the state of Wisconsin to pay for Chisholm's misdeeds. I want it to come out of his childrens' college fund and the equity in his house.

We need to start smashing the Left in the teeth with the same vigor they have been doing to us. Drain them dry with legal fees even if there is no real hope of victory in court.

Also, we need education about jury nullification so that victims who engage in righteous retaliation against these monsters are never convicted for it. These people are domestic terrorists and should be treated as such. Certainly no jury on which I sat would convict someone who used violence to resist the left wing enemy. The benefits of the rule of law should be reserved only for those who respect it themselves.

I'm curious if the liberal (if you'll excuse the expression) use of the term "leftist" here is just used as a synonym for "democrat,"

It's often hard to distinguish between people that abuse human rights because of sincere (but gloriously idiotic) beliefs about human nature, and people that insincerely espouse these idiotic beliefs as an excuse to abuse human rights.

Garage, are you saying Democrats don't hold any state, county, city or judicial positions of power? Are you REALLY saying that? Does that mean Supreme Chief Justice for Life has given up her quixotic grasping unreasonable hold on title of Uber-Justice?

Kind of nice to get back to reading AA again. LI has resident trolls who like to change their public ID from time to time. Whereas, on AA, some trolls continue unabated under one ID, although is it certain that the same person is always using that commentor name?

Still, the collective should well be in favor of quashing this "John Doe" abomination since it could well be used on them in the very near future. Of course, payback is that well known lady of uncertain reputation and does have the capability to bite down hard and hurt the collective; which is a good thing.

Democrats control Milwaukee County and they control Dane County as you very well know. That is where the mischief is being done, for the most part. Oh, Democrats also control the entire federal justice department.

One of the implications of the "it's only Republicans who want to lock people up" theory is that there should exist things for which a lot of people are locked up in Texas but which are legal in New York. Can anyone provide me with an example?

Publius argues in one of the Federalist Papers that the national judiciary has the duty to hear cases where the state judiciary is presumed to be biased. On this basis alone, SCOTUS should hear the case.

This disclosure is intended to counter claims by conservative groups that they are being targeted by prosecutors because they backed the first-term Republican governor. Milwaukee County District Attorney John Chisholm, a Democrat, acknowledges in a separate filing that he initiated the investigation.

In his declaration, Schmitz acknowledged that he was once a member of the Republican Party. He said he took the step of joining the GOP "in connection with seeking the Presidential appointment as the United States Attorney" for the Milwaukee area after the 2002 election.

President George W. Bush eventually chose Steven Biskupic over Schmitz and another finalist. Biskupic now represents Walker's campaign in the current investigation. Schmit

So a guy signs up as a party member so he can get a Federal appointment. He doesn't get it, so he quits.

Doesn't sound like a terribly active Republican. He does sound like a political player, though.

Whoever did it- whoever authorized those raids and the gag order- did the absolute wrong thing.

Paul Zrimsek said...One of the implications of the "it's only Republicans who want to lock people up" theory is that there should exist things for which a lot of people are locked up in Texas but which are legal in New York.

This would bear some relationship to logic if, a) there had never been Republican state governors or legislature in NY and b) if having a political opponent run on a 'law and order' platform did not cause weak kneed Democrat politicians to mimic their platform. And, as Republicans repeatedly and correctly note, once laws are on the books it is extremely difficult to remove them because there is always some interested party, in this case the police, prosecutors and the prison industry.

The Rockefeller drug laws in NY are the perfect example of all these points.

The larger point is that the President of the United States and the leading Democratic aspirant both favor gelding the First Amendment to allow still more government oversight of political speech. And what would the liberals say if police battered down John Nichols' door? Comrade John certainly has been conspiring with all sorts of entities — labor unions, enviros, the Democrat Party, International Socialists, et al. — to bring down Republicans during the recalls.

David Blaska said...The larger point is that the President of the United States and the leading Democratic aspirant both favor gelding the First Amendment to allow still more government oversight of political speech. And what would the liberals say if police battered down John Nichols' door? Comrade John certainly has been conspiring with all sorts of entities — labor unions, enviros, the Democrat Party, International Socialists, et al. — to bring down Republicans during the recalls.

That's the point isn't it? That this happened to a Republican the left says ," No big deal. They had it coming." but if the roles were reversed the left would be screaming bloody murder. Because to the left free speech, especially political speech must be regulated lest ideas not to their liking be presented. Whereas a conservative is concerned with Everybodys right to free speech. That the first amendment right is not relative to a particular political position

In his declaration, Schmitz acknowledged that he was once a member of the Republican Party. He said he took the step of joining the GOP "in connection with seeking the Presidential appointment as the United States Attorney" for the Milwaukee area after the 2002 election.

Thanks, MayBee, for providing that information.

The argument that Schmitz's participation makes the John Doe investigations bi-partisan is really pathetic.

A more important issue, however, is to identify the FBI officials who have participated in the John Doe investigations. What are the names and positions of the FBI officials, and what functions did they perform in the raids and in the investigation activities before and after the raids?

How can the Supreme Court treat this as only a Wisconsin matter when the Obama Administration's FBI has been participating in the John Doe investigations?

Chisholm prosecuted Democrats like Johnny Thomas, Toni Clark, and Michael McGee just to make it appear he's goes after both sides.

[Sigh] Who cares? For all I know he did 99% of his job in a wise, non-partisan, fully legal manner. So fucking WHAT?!?

What is at issue here is an unconstitutional process where a target of a John Doe investigation can have their first amendment rights of speech and association curtailed by a court order; their right to an attorney denied; their reputations ruined by jack-booted thugs.

I know you're not too dense to "get" that. But you are employing a lot of straw man arguments and squirrels to avoid acknowledging that no matter what Kluka, Chisholm and Schmitz did or said or supported outside this John Doe debacle is meaningless to the issue of prior restraint and statist fascism under the color of "investigation" (witch-hunting).

What is at issue here is an unconstitutional process where a target of a John Doe investigation can have their first amendment rights of speech and association curtailed by a court order; their right to an attorney denied; their reputations ruined by jack-booted thugs.

Then change the law. Again, there is no evidence I am aware of that proves any of this took place. Do you have anything?

So Garage hasn't read any of the news accounts where the targets were told not to contact an attorney, not to talk about the raids, not to talk to other targets...so it just didn't happen because you don't know?

Educate yourself on the fucking John Doe law then. It's only 100 years old.

So Garage hasn't read any of the news accounts where the targets were told not to contact an attorney, not to talk about the raids, not to talk to other targets...so it just didn't happen because you don't know?

Specifically, DeLaquil argued, the prosecutors’ confiscation and continued possession of sensitive information on conservative groups, including donor lists, potentially perpetuates the chilling effect on their First Amendment rights, which is a federal issue.

DeLaquil concluded his remarks by saying in this John Doe investigation “the process is the punishment.”

Taylor’s source says Colleen Chisholm, the district attorney’s wife, instigated the probe. Chisholm serves as a local organized-labor steward at a public school, and was reportedly emotionally upset at Walker’s efforts to limit the collective bargaining power of public sector unions in 2011.

Taylor’s source says Chisholm “'frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved,” spurring the district attorney to begin the investigation of the political activists.

garage mahal:If this did happen, what makes any ofit [sic] illegal under Wisconsin law?

Okay, I've answered this at least once today, but in good faith I'll try once more, slightly modified: Wisconsin law is trumped by the US Constitution, and since the Constitution acknowledges a preexisting right to free speech (and "Congress shall make no law abridging" it) and free association, NO LOUSY WISCONSIN LAW IS ALLOWED to deny one of our 1st Amendment rights.

Yes as you said upthread, we should (or should have) change the law but the SCOTUS may just save us that step and throw the outdated unethical piece of shit law out altogether.

Garage you're right. I'm sure all those Jim Crow laws were in no way conflicting with the Federal law. Hell we should just make a new law in WI that makes it illegal to be a registered Democrat. Why not?

Sweet Jesus. It doesn't matter whether it's illegal under Wisconsin law. It matters whether it's illegal under FEDERAL law. Which is why the USSC may be taking it up, and why the WSJ suggests they should.

What prosecutors need to do is inquire to see if they can launch an investigation. Right wing donors, bloggers, and blog commenters. If they give the okay then they can investigate. If it's into a Republican, then, why, it's almost certainly unconstitutional.

That's the biggest difference between you and me Garage. I don't care if the targets or prosecutors are liberal or conservative or registered in one party or the other.

This is what's called having principles in regard to the rule of law. When I say "no one should have their 1A rights abridged" I mean no one regardless of race, creed or color. And no I don't care what example you present from the past to say, "Well you didn't squeal when X was treated this way." Because that's just so much squirrel to distract from your lack of concern when people have their rights denied in the here and now.

I don't care if the targets or prosecutors are liberal or conservative or registered in one party or the other.

So would you agree that anyone convicted using a John Doe proceeding should get a prompt pardon from Walker and be eligible for monetary damages? For some reason it seems like conservatives are only concerned with this one case.

What other cases entailed battering ram raids and suppression of campaign speech like this case did? You seem to be a John Doe expert so please just list two or three that were, like these, done in a way that suppressed issue advocacy spanning two elections and possibly a third if this continues into next year.

Hell one other case like this would pique my interest. Cuz I'm really not interested in cases NOT like this one.

Randa took the word of O'Keefe as gospel, despite nothing in the official record documenting it. And he ruled in O'Keefe's favor. The same judge who goes to Koch junkets. Wheeee! That's not corrupt AT ALL.

AReasonableMan said...This would bear some relationship to logic if, a) there had never been Republican state governors or legislature in NY and b) if having a political opponent run on a 'law and order' platform did not cause weak kneed Democrat politicians to mimic their platform. And, as Republicans repeatedly and correctly note, once laws are on the books it is extremely difficult to remove them because there is always some interested party, in this case the police, prosecutors and the prison industry.

ARM, your b) basically makes your argument non-falsifiable--your claim is that Republicans are at fault, and as evidence you argue that even when it's Democrats who do it, they only do it because of Republicans, so Republicans are always at fault. It's a bit of a rhetorical tautology, no? Anyway lots of those "security moms" who vote D are all for locking folks up, so I don't think it's true that the only reason Ds favor a law-and-order approach is because the Rs make them. The threat (from Rs) wouldn't make much sense if it wasn't something a large portion of the Ds' voters would find appealing, and given that it doesn't make much sense to characterize the problem as only the Rs' fault.

I can more easily make a case that Tom Steyer owns the Democrats (does anybody OUTSIDE of the far Left give a rat's ass about global warming --- yet it's the Dems obsession) than the Kochs owning the GOP.

All this back-and-forth with "garage" is pointless. Some of you believe in free speech, and he doesn't - it really is that simple. When he asks "whose rights were violated," that's a perfectly legitimate question in his world. He and people like him (and there are plenty) believe that you should be punished if you make unapproved statements. Of course you should expect agents of the state to come to your house in the night, and if necessary batter your door down, if you engage in unregulated speech.

It's like a belief in God: either you do or you don't. I used to believe in God, then I didn't. I've had many discussions with people on the opposite side of the question - not once did I ever convince anyone I was right. It's a belief system. If you don't believe in God, you don't. If you don't believe in free speech, you don't.

I appreciate "garage" for honesty - he is making his position clear, over and over and over. He doesn't believe in free speech - he believes citizens should submit to the state. They don't have "rights" that are natural or (to use a quaint phrase) "God-given." Rights are what the state gives you, and "garage" doesn't believe the state has given you the right to speak without consequences.

Yes, garage, anyone targeted in any John Doe investigation where they were told they could not contact legal counsel were denied their constitutional rights. All of them should sue, and any who were convicted of a crime based on a John Doe investigation should apply for a pardon and sue to have the conviction set aside.